Highlight: Applicant alleging ineffective assistance of post-conviction counsel cannot circumvent the Uniform Postconviction Procedure Act’s bar on challenging post-conviction counsel’s representation by making his allegations in a motion rather than an application for post-conviction relief.

A N.D.R.Civ.P. 60(b)(3) motion alleging fraud by prior post-conviction counsel is without merit because an attorney representing a party is not adverse to the party.

Applicant for post-conviction relief is entitled to notice that his application may be summarily dismissed.

Highlight: A lawyer is publicly reprimanded, ordered to pay partial costs of the disciplinary proceedings, and ordered to refund money to a client for violating N.D.R. Prof. Conduct 1.16(e). Fee agreement including both a contingent fee and a non-refundable fee is not per se unreasonable under N.D.R. Prof. Conduct 1.5(a). Rule 1.15(e), N.D.R. Prof. Conduct, requires a lawyer in possession of property in which two or more persons claim an interest to keep the disputed property separate until the dispute is resolved. The lawyer does not violate the Rule if there is no evidence he had possession of the property when he became aware of the dispute. A lawyer is required to refund any advanced payment of fees not earned.

Highlight: To prevail on a motion for a new trial on the grounds of newly discovered evidence, a defendant must show: (1) the evidence was discovered after trial, (2) the failure to learn about the evidence at the time of trial was not the result of the defendant’s lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal.

Highlight: On a motion for summary judgment, a court may not weigh the evidence, determine credibility or attempt to discern the truth of the matter. Chapter 35-27, N.D.C.C., provides procedures for obtaining a construction lien on improvements to real property and for the enforcement of the lien.

Highlight: Denial of the Sixth Amendment right to a public trial without having considered the Waller factors is a structural error. When examining the scope of closure of a trial, special awareness should be given to whether both the public and jury must be excluded, or only the jury, and the scope should be adjusted accordingly.

Highlight: The elements of an abuse-of-process claim are an ulterior purpose and a willful act in the use of process not proper in the regular conduct of the proceeding. To maintain an action for malicious prosecution requires a plaintiff to show the action was brought with malice. The absence of a viable substantive claim precludes a separate claim for punitive damages.